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Cutler v. Dorn

July 31, 2008


On certification to the Superior Court, Appellate Division, whose opinion is reported at 390 N.J. Super. 238 (2007).


(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

In this appeal, the Court assesses the sufficiency of a plaintiff's proofs in a religion-based hostile work environment claim brought under the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49.

Because of the procedural posture of this case, which arises out of a motion by defendant, Borough of Haddonfield, for judgment notwithstanding the verdict (nov), the Court accepts as true all the evidence supporting plaintiff. Jason Cutler had been employed as a police officer by the Haddonfield Police Department since 1995. Cutler is Jewish, and his faith and background were known by his co-workers and supervisors. The then-Chief of Police, Bill Ostrander, commented on Cutler's Jewish ancestry "a couple times a month" and often referred to Cutler as "the Jew." Once, Ostrander asked Cutler "where [his] big Jew . . . nose was." Lieutenant Lawrence Corson also made comments, such as "Jews are good with numbers," "why didn't you go into your family business," and "Jews make all the money." Cutler did not complain, fearing retaliation in the small police department. Although Cutler believed Ostrander's and Corson's comments may have been intended as an ill-attempt at "humor," he considered them offensive and felt there was a departmental culture that was "ripe with anti-Semitism."

The effect of those comments was amplified by several incidents that caused Cutler to feel he was subjected to discriminatory or harassing treatment because of his religion. A superior officer had told Cutler not to wear his yarmulke during Passover because it would be noncompliant with Haddonfield's uniform requirements; yet, another member of the department was allowed to wear a "Jesus First" pin on his uniform. In another incident, Cutler found a sticker of an Israeli flag on his locker. A few weeks later, a German flag sticker was placed above it. Cutler believed that the stickers were a reference to the Holocaust, and that "somebody was trying to send [him] a message." He did not file a complaint because he "didn't want to give the person who put it there the satisfaction of letting them know that it got to me."

Another incident occurred on April 18, 1999, when Cutler, fellow patrolmen Robert Shreve, Jr., and then-corporal Mark A. Knoedler were preparing to watch a training video about diplomatic immunity. Shreve asked if the others knew why they had to watch the video. Knoedler said that the Maccabi games were to be held in Cherry Hill. Cutler explained that the Maccabi games were "the Jewish [O]lympics" and an important event in the Jewish community. At that moment, Shreve blurted out "Those dirty Jews"! The comment "stunned" Cutler. After the video ended, Cutler told Knoedler that the comment had offended him. Knoedler told Shreve to apologize to Cutler for his inappropriate comment. Shreve told Cutler that he meant it as a joke and he was sorry. Cutler replied that the comment was insensitive and not "harmless humor."

A few days later, Knoedler asked Cutler if he wanted to file a Bias Incident Complaint. Cutler hesitated, believing it could jeopardize his career because Shreve was close with the Director of Public Safety, Theodore Dorn. Nonetheless, Cutler submitted a letter complaint reporting Shreve's comment. Cutler also complained that others in the department had engaged in hostile conduct directed at him because of his Jewish ancestry. He explained at trial that he had waited a few days to file a complaint because "I thought I had thicker skin. . . . I didn't think . . . comments like that would bother me or I was almost disappointed in myself for being so upset. . . . [T]his was the straw that broke the camel's back. . . . So it was just a culmination of events that just . . . built up and built up, and finally I opened my mouth." Haddonfield's Internal Affairs Department investigated the matter and recommended that Shreve receive a "letter of counseling" and sensitivity training.

Less than three months later, Cutler attended an unrelated disciplinary hearing involving another officer. Shreve was a witness, and he was asked about the incident with Cutler. Shreve described his April 1999 comment as "let's get rid of all those dirty Jews." Cutler interpreted Shreve's account of his earlier comment as reflecting an advocacy of genocide. Cutler considered the comment to be threatening. Thereafter, Cutler began to experience frequent insomnia, headaches and anxiety.

On July 14, 1999, days after hearing Shreve's testimony in that unrelated matter, Cutler filed this LAD action against Haddonfield, Dorn, and Shreve, alleging he was subjected to a hostile work environment based on his religion and ancestry. After a trial, the jury found that Cutler was subjected to a hostile work environment, but it awarded no damages and found that the delay in Cutler's promotion to corporal was not retaliatory. Haddonfield moved for judgment nov, and Cutler moved for post-judgment relief. Each was denied by the trial court. Both parties appealed.

The Appellate Division upheld the trial court's holdings with respect to those claims of error that the panel reached. Cutler v. Dorn, 390 N.J. Super. 238 (App. Div. 2007). Its critical holding was to reverse the denial of Haddonfield's motion for judgment nov. The panel found that the alleged discriminatory conduct was "sporadic and not sufficiently severe or pervasive to create a hostile work environment under the LAD." The Court granted certification. 192 N.J. 595 (2007).

HELD: The threshold for demonstrating a religion-based, discriminatory hostile work environment is no more stringent than the threshold that applies to sexually or racially hostile workplace environment claims. Here, plaintiff's case satisfied the standards for a hostile work environment claim to warrant, and subsequently uphold, a jury determination.

1. Under the LAD, prohibited employment discrimination includes harassment, based on race, religion, sex, or other protected status, that creates a hostile work environment. The test adopted in Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587 (1993), which involved sexual harassment, applies generally to hostile work environment claims. Thus, where the claim involves allegations of harassment based on religious faith or ancestry, the inquiry is whether a reasonable person of plaintiff's religion or ancestry would consider the workplace acts and comments made to, or in the presence of, plaintiff to be sufficiently severe or pervasive to alter the conditions of employment and create a hostile working environment. (pp. 11-13)

2. "Severe or pervasive" conduct must be conduct that would make a reasonable person believe that the conditions of the employment are altered and that the work environment is hostile. That assessment requires an examination of the totality of the circumstances. Hostile environment claims are based on the cumulative effect of the individual acts. (pp. 13-15)

3. The LAD prohibits severe or pervasive workplace harassment about any religion or belief system. Here, the unique history and background of Cutler's Jewish faith and ancestry provide the contextual setting for the Court's consideration of the totality of the evidence supporting Cutler's hostile work environment claim. The derogatory statements by Cutler's superior officers and colleagues about "Jews," and the many demeaning comments that stereotyped persons of Jewish ancestry, were aimed to have an effect on Cutler, whose faith and ancestry were known to the speakers. The uttering of those repeated comments clearly constituted a form of harassment. That conduct could easily be found to be objectively hostile. The remarks were not only degrading but conveyed ongoing hostility toward Jewish people. Collectively, the statements could be viewed, objectively, as humiliating to a person of Jewish ancestry and faith. (pp. 16-18)

4. The Court rejects Haddonfield's attempt to excuse the conduct by reference to a "humor file," which supposedly demonstrated the level of "ribbing" that went on among members of the department. The complained-of comments did not relate to that file. They occurred during the normal give and take of the daily workplace and demonstrated the pervasiveness of an anti-Jewish sentiment that comfortably could be voiced in this police department. (pp. 18-20)

5. On repeatedly hearing the stereotypic and demeaning remarks, a person of Jewish faith and ancestry could reasonably feel that his ability to be fairly evaluated was lost, and that the workplace was altered for the worse. The reference to "dirty Jews" and the later iteration of that comment to "let's get rid of all those dirty Jews" harkened Cutler back to thoughts of one of the lowest times in mankind's history, the Holocaust. Many of the other comments also have historical anti-Semitic significance. Cutler's offense and distress were responses one could expect from a reasonable person of Jewish faith and ancestry. In sum, the comments and actions here demonstrated an anti-Semitic bigotry that has no place in a workplace of this state. The trial court correctly held that Cutler's case should be decided by the jury, and that the jury's verdict was supportable on this record. (pp. 20-21)

6. Our courts must recognize that the religion-based harassing conduct that took place for Cutler in this "workplace culture" is as offensive as other forms of discriminatory, harassing conduct outlawed in this state. In order to place a hostile work environment claim before a jury, a claimant asserting harassment on the basis of religious beliefs and ancestry is not required to bear a heavier burden than claimants asserting sexual or racial harassment. Here, the trial court correctly perceived that Cutler had presented a sufficient case to survive a motion for dismissal. That judgment was consistent with other judicial determinations that have recognized that a prima facie case for a religion-based hostile work environment claim can arise from the corrosive effect that religious taunts, belittling derogatory comments, and insults about one's religious beliefs and ancestry can have when made in the workplace. (pp. 21-25)

7. There was sufficient evidence for the jury to conclude that Cutler suffered severe or pervasive harassment. To the extent that the Appellate Division based its contrary conclusion on Heitzman v. Monmouth County, 321 N.J. Super. 133 (1999), the panel erred. Here, unlike in Heitzman, many of the comments were made by Cutler's supervisors, and most were more directly aimed at Cutler. More importantly, the Court never had the opportunity to review the decision reached in Heitzman. To the extent Heitzman suggests a higher threshold for demonstrating a hostile work environment when religion-based harassment is claimed, that misapprehension must end. (pp. 26-27)

8. To the extent that the appellate judgment under review rejected the trial verdict, it is reversed. The panel correctly rejected Cutler's claim that the trial court abused its discretion by not allowing him to amend his complaint. (pp. 27-28)

The judgment of the Appellate Division is AFFIRMED in part and REVERSED in part, and the matter is REMANDED to the Appellate Division for further proceedings consistent with the Court's opinion.


The opinion of the court was delivered by: Justice LaVECCHIA

Argued April 7, 2008

This appeal involves a claim brought under the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, by a Jewish police officer who alleged that he was subjected to a hostile work environment based on his religion and ancestry. The principle issue before us is whether the trial court erred in denying a motion for involuntary dismissal and allowing the claim to be decided by the jury. The jury found in plaintiff's favor on the hostile workplace claim, however, it awarded plaintiff no damages. On appeal, the Appellate Division reversed that verdict, finding error in the trial court's denial of the dismissal motion and the later denial of a motion for judgment notwithstanding the verdict (nov). Cutler v. Dorn, 390 N.J. Super. 238, 255 (2007).

We granted plaintiff's petition for certification, 192 N.J. 595 (2007), and, for the first time, we will assess the sufficiency of a plaintiff's proofs in an essentially religion-based hostile work environment claim. Consistent with this state's strong policy against any form of discrimination in the workplace, we hold that the threshold for demonstrating a religion-based, discriminatory hostile work environment cannot be any higher or more stringent than the threshold that applies to sexually or racially hostile workplace environment claims. Therefore, and also consistent with our holdings on hostile workplace claims in those settings, we conclude that plaintiff's case satisfied the ...

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